Wednesday, September 01, 2004

Virginia court of appeals takes a pass on claim over 1677 treaty with Indians

In Mattaponi Indian Tribe v. Com., the issue was whether the circuit court erred in dismissing the claims of the Mattaponi Indians based on the 1677 Treaty at Middle Plantation, which the Court described as follows:

"Entered into shortly after Bacon’s Rebellion, the treaty between the “Dread Sovereign” King Charles II and the “Kings and Queens” of several Indian tribes sought to establish “a good Peace with the Neighbour Indians” and the English settlers. One provision of the 1677 treaty states that “no English shall Seat or Plant nearer than Three miles of any Indian Town; and whosoever hath made, or shall make any Incroachment upon their Lands, shall be removed from thence . . . .” Another provision allows “Indians” to hunt, fish, and gather vegetation not “useful to English” on English land provided they obtain a “certificate” from a magistrate. Finally, Article XVIII of the treaty includes what appears to be a form of dispute resolution provision:

That upon any Discord or Breach of Peace happening to arise between any of the Indians in Amity with the English, upon the first appearance and beginning thereof, and before they enter into any open Acts of Hostility or War one against another, they shall repair to His Majesties Governour, by whose Justice and Wisdom
it is concluded such Difference shall be made up and decided, and to whose final Determination the said Indians shall submit and conform themselves."

Ah, but the Court of Appeals concluded this part of the case is outside its jurisdiction, and shifted the case over to the Virginia Supreme Court.